Supreme Court verdict in Delhi vs Centre power tussle is sound, but question of city's constitutionality remains

While holding that Delhi is not a state, the Supreme Court on Wednesday limited the ambit of the lieutenant-governor's powers . The constitutional position of Delhi has been cloaked in a badly-drafted provision under Article 239AA. It states that Delhi is still a Union Territory, but with a special status, it will be known as the National Capital Territory (NCT) and will also have a state Assembly, to which the people will elect representatives. Before the central government added Article 239AA to the Constitution through the 69th amendment in 1991, Delhi was like any other Union Territory in India. The constitutional provision is self-contradictory — on one hand, it holds that Delhi is a Union Territory, but then it states that it will also have elected representatives of its own. [caption id=“attachment_4393385” align=“alignleft” width=“380”] File image of Delhi chief minister Arvind Kejriwal. Getty Images.[/caption] The essence of a representative democracy is that the elected representatives, not nominated individuals, should exercise the executive power. In this case, the elected government in Delhi is of the Aam Aadmi Party, whereas the lieutenant-governor is a central government nominee. Even though the Centre is also an elected government, a body of directly-elected representatives should be able to exercise the executive powers in Delhi. On Wednesday, the Supreme Court broadly stuck to this principle and pronounced a judgment that is good in law . When it comes to a constitutional provision like Article 239AA, the only way to interpret it correctly would be the way the Supreme Court did in its final verdict. In three different judgments, the top court upheld the principle of “aid and advice” and its supremacy. Justice DY Chandrachud, one of the five judges who heard the case, emphasised constitutional morality and the need for it while interpreting the Constitution. There is no disagreeing that any legal document — be it the Constitution or any other statute — should be interpreted in the spirit with which it was framed. Now, there is a broader question that needs addressing: What should be Delhi’s constitutional position? Laws only reflect the policies the governments of the day adopt. The matter of Delhi’s statehood was also a policy decision compelled by the political situations of the day. As hybrid structures in constitutional schemes have failed historically, policy-makers should opt for conventionally-recognised structures of governance. This means that Delhi should either be granted full statehood, or it should remain a Union Territory like any other. A Union Territory with an elected government does not make any sense. If there are no powers vested in the elected representatives, and a nominated authority in the form of an L-G can override the elected representatives at will, it is bad in law. Article 239AA(3) explicitly mentions the limitations of the Delhi government with respect to three subjects — public order, police and land. But Article 239AA(4) adds a proviso that the matter should be referred to the President of India when there is doubt about whether it falls under the purview of the Council of Ministers or the lieutenant-governor, which in turn means that the central government will take the final call. The provision effectively gives the Centre the power to run Delhi. [caption id=“attachment_4664371” align=“alignnone” width=“825”]  Cartoon by Manjul.[/caption]   This constitutional anomaly was drawn from the recommendations of the Balakrishnan Committee, which had suggested granting Delhi statehood but with limits. This, I believe, was not the right recommendation to make, and that Delhi was just fine being a Union Territory. Today, residents of Delhi have an elected municipality, an elected state government and elected members of parliament. This resulted in populism, which peaked with the AAP’s election to power. At the end of the day, Delhi is just a metropolitan city that does not deserve to be a state. If Delhi is granted statehood , or is even made a state with limited powers and an elected government, why shouldn’t Mumbai, Bengaluru, Chennai or Hyderabad be given the same status? Mumbai contributes 7 percent to India’s gross domestic product and 33 percent to the taxes collected in the country. It certainly makes a better case to be a state. Being the seat of power does not give Delhi special reason to be a state, or even a special Union Territory. In fact, this makes a better case to give Delhi the status of an even stronger Union Territory. It should be understood that Delhi’s limited statehood was a political decision enacted through a badly-drafted constitutional provision, and it should be corrected by a political decision by the central government. Delhi’s limited statehood should, therefore, be dissolved. Raghav Pandey is a senior fellow with the Department of Humanities and Social Sciences at IIT-Bombay.